The Legal Failure In The Sex Scandals

Amid serial denouncements of the sexual predation of men in high power, an important aspect has been missed: the degree to which these scandals have been failures of the legal system. Wealthy sex beasts like Harvey Weinstein and Bill Cosby were able neutralize rape accusations using the all-American tactic of legal attrition to out-spend/out-last accusers. Cosby apparently did it for a generation and a half.

Conflict of interests rules forbid me a soda from a patient, yet Harvey Weinstein was able to get a collection of politicians (and, evidently, prosecutors) into the same trophy case as his rape victims: It’s likely Weinstein’s retained political power enabled him to neutralize the investigation from a determined group of sex crimes detectives, who were unable to overcome the obstruction of their own District Attorney’s office. The perception, alone, of Weinstein being able to retain a Prosecutor should be enough to drive a movement for reform of the nexus between law and government.

What is interminable stall and point-of-law parsing for the rich, should painfully contrast with our machine-like efficiency for jailing low-level, mentally ill drug offenders.

This exquisite character of the separate legal system for those with means, and especially political power, has played out everywhere on the American cultural landscape, from the O.J. trial, to the “do over” trial of Sheldon Silver, to the treatment of ex-Governor and Democratic bundler John Corzine, who presided over the “disappearance” of over a billion dollars in his client’s money. Money and political power clearly transcends the legal system.

Among other damages, one must wonder whether this exquisiteness, along with “CSI” style popular crime entertainment, distorts American’s notion of our legal system as a meticulously scientific discoverer of fact, rather than what is for most of our poor: a grinding assembly line form of negotiation (97% are plea bargains, never reaching trial). Can it be that for the politically connected or rich these negotiating positions are inverted? We could not possibly afford a legal system of this complexity for our lessers.

To what degree this compromises America’s cultural notion of a nation all under the same rule of law is a topic for another day. No other society needs and has more lawyers, and it seems like we still don’t have enough.

With this complexity it should sustain no controversy that legal attrition helps Harvey Weinstein through the morass, but crushes Rose McGowan. We need to hire lawyers to guide us through the swamp they themselves made. There is no doubt in my mind that a panel of, say, social workers, could have done a better job finding truth and justice in a fraction of the time. Account this as another reason Americans are rightly skeptical of the motivations of their institutions.

Much of the distortion is also because the issue is being sifted through the screens of our politico/news-o-tainment systems. All issues are politicized, since the political process now effects all issues. The resulting point-talking, point-scoring-as-usual cacophony is not liable to result in the needed specific, changes to the legal environment where these two sex beasts thrived.

Clarity is lost in legally parsed, obfuscated definition: if unwanted touching is deemed sexual assault we discover that college is fearsome, and by this definition the subway is a veritable rape factory (the trauma of it forgotten, outrage and PTSD an invisible bubble re-activated once the subway is left behind?). If we change our examination to specifics, by defining sexual assault as the rape almost everyone in the world understands it, we find the peril magically dispelled by the clarity of definition. A bitter irony here should be that in this confusing advancement of the definitions of sexual assault, we leave neglected the demographic at the highest risk for rape: the people of color in the inner ghettos (rich person’s war, poor person’s fight).

Attempts to overlay a political agenda onto a group of individuals will always result in messy compromise and lack of specificity. Let’s take the example the resignation of Attorney General Eric Schneiderman, hypocrisy of his hard-riding the #MeToo bandwagon aside: as of last week, he would have liked nothing other than a quick legal procedure to establish the truth of the accusation (as he maintains it). His accusers must want the same thing. Let’s also jettison the hypocrisy of the sudden wish for a legal system that America once had, where clarity and alacrity were seen as essential attributes.

That Democratic New York State politics cannot politically allow another Kabuki opera (an unadapted form of incomprehensible complexity) of an investigation into Schneiderman to play out over the years is another affirmation of my point: the question of whether Schneiderman’s sexual relations with his accusers was consensual is a narrow question of law and fact. In this case, like all others: justice is only done for those who are telling the truth. But the #MeToo activists would have justice as a form of sacrifice, which is always the result of politicizing narrow questions like these. Granted, a politician loosing his job, and a political party reacting to the staining mud of hypocrisy, is not the end of the world, but we should be hearing the dissenting voices of the Weintstein victims as they point out what political compromise can look like on the losing end.

This is also in keeping with a failure pattern common to Government: having expanded its remit, addressing misogyny but lacking the informational feedback loops to measure success and failure, it will move to the scapegoat and ask for expanded power, which will not aid them in the inability to process the information that caused the expansion in the first place, and the loop continues in a loop.

Yet the media conversation has been cast as a broad need for cultural reform against a widespread problem of misogyny (and the casters, as usual, would be more than happy taking jobs in teaching us how to repent. But this is not that, it is a symptom of our legal system’s failure points along the lines of legal power trying to bend the concepts “Justice” and “Attrition” into the same sentence. If Bill Clinton can turn a mere conjunction (“is”) into such an expensive and ultimately futile, game of Twister, imagine what more expensive and practiced torquers can do with the verb “rape.” Our tools for managing the joining of law and power should have been reformed right then. Look at the Trump mess we are in now, with over a year of scandal, no end in sight, and both parties bleating “treason” because our devices for applying the rule of law are unadapted to dealing with the wealthy and the politically connected. And, sure enough, Americans take a dim view of our legal system.

The true power disparity here is that the rich are able to initiate a legal arms race that the poor cannot match.

Eugene Darden (Ed) Nicholas is from Flushing Queens, where he grew up sheltered from the hard world, learning the true things after graduating college and becoming a paramedic in Harlem. School continues to inform and entertain in all its true, Shakespearean glory. It's a lot of fun, really. In that career, dozens of people walk the earth now who would not be otherwise. (The number depends on how literally or figuratively you choose to add). He added a beloved wife to his little family, which is healthy. He is also well blessed in friends and colleagues.